Property Division in Pennsylvania
“We are getting a divorce. Who gets to keep what?” There are no real advantages to being poor with the possible exception of owning and dividing up what little a low-income couple may have when they have decided that the marriage has not worked out and it is time for both people to go their separate ways in search of happier lives. Yes, I know, small consolation. Even in such cases, both parties may want to keep the same things: The flat-screen TV; the washer and dryer; the car; even the house.
In most other states, when a divorce is filed, while the couple may get to decide that on their own if they can, what they have to divide and how it will be divided are required to be in the divorce documentation and even subject to court approval. More work for the attorney(s), higher legal fees for the parties. Thank goodness for Pennsylvania’s No-fault Divorce law of 1980. in our state, if the two of you are able to divide up what you accumulated during your marriage on your own, perhaps but not necessarily with a little legal advice, but definitely without fighting over it before the judge, you will save a lot of time, thousands in legal fees and even anger and heartbreak.
First let us look at what our law considers “marital property“. A shorter list may be what is not marital property, among which are assets either party had before getting married provided such assets were not made a gift to the marriage, either intentionally or not. A good example would be a bank account that one party kept in that one party’s name and of which no amount was ever used to benefit the marriage, such as using all or part of it to purchase a house that became the marital residence. Similarly, it is even possible to acquire a non-marital asset during the marriage, like when Great Uncle Bruno dies and leaves you a few bucks…or a pile of them. As long as you put and keep the funds in a separate account, it will never become a marital asset subject to division, at least not by the court. When discussing what is fair, it is going to be very difficult to convince your spouse that you need half of the $15,000.00 in the family savings account even though Bruno left you $100K that you have not even touched.
Notice that I just used the word “fair” in deciding how to divide the assets. It does not matter that you worked during the entire marriage and your spouse never earned a cent. It does not matter that only your name is on the deed to the house you bought to live in after you got married. It does not matter that only your name is on the classic car’s title that you bought during the marriage. How the court would divide your marital assets – and how it would like you to divide them if you do it on your own – is by looking at each party’s financial future and giving more to the person who needs more, sometimes, in accordance with some cases I have read, as lopsided as 65% to one spouse and 35% to the other.
So, dividing the marital assets equitably (our law calls it “equitable distribution”) is what could happen; however, the two of you are perfectly free to divide things in anyway on which you may agree, from 100% to 0% or vice versa or anything in between. The court would not interfere. Heck, under Pennsylvania law, it is not even required the the court know about how you settled nor that your settlement even be in a formal written agreement. Incidentally, it may be OK not to have that agreement as long as you divide up everything BEFORE the divorce is final. Anything that may or must wait until after the divorce better be in writing or you may not be able to collect. A word to the wise.
Another question that comes up is what about a house one party owned, we’ll say paid for in this example, before the marriage? If that house becomes the marital residence, your spouse will have a claim to a portion of it. That portion is expressed as a fair (there’s that word again) share of the amount that the real estate increased in value during the marriage (until you separated, if you did finally separate). The same would apply to other such assets you shared with the marriage which increased in value. Of course, with the exception (typically) of real estate, few other common assets increase in value, maybe a stock portfolio to which you added your spouse’s name.
If the two of you cannot reach an agreement on your own, you will need the assistance of attorneys and even, possibly, a decision by the court. That will cost thousands and take a major bite out what would be left to divide. That said, even people one would consider level headed have lost their cool in anger when trying to reach an agreement. As difficult as it may be to do, every effort should be made to treat the division of assets as a business proposition, keeping emotions out of it… easier said than done, but possible.
Even though we know this is a no-fault divorce wherein all that the court documents state is that the marriage is irretrievably broken, we also know that, at some point in the recent past, one spouse became more disenchanted with the marriage than the other. If that happened because the other spouse is clearly – maybe even admittedly – guilty of some kind of marital misconduct (physical abuse, drugs or alcohol abuse or adulterous behavior, for example), the “guilty” party sometimes feels sufficiently so that a larger portion of the assets will be given up to the (more or less) innocent and injured spouse. It is neither unlawful nor immoral to take advantage of that if one can do so.
Notwithstanding all of the foregoing, in a low-cost, simple, uncontested, no-fault divorce, the two of you must come to agreement regarding all assets, both marital and non-marital; otherwise, when it comes down to the necessary final signatures to conclude the divorce, if one of you wants something and has not received it, the divorce will not be granted.